BRAHMAMOYEE CHAUDHURANI Vs. GOPI MOHAN RAI CHOWDHURY

JUDGEMENT

(1.) These are two appeals arising out of the same judgment.

(2.) The plaintiff No. 1 and the defendants Nos. 1 and 2 are co-sharers and ijmali maliks of a certain bazar called Bhola Chong Bazar. The other plaintiffs are the lessees from the plaintiff No. 1. The western portion of this bazar is known by the name of Chandina Bazar and in this latter there are tin sheds belonging to the shopkeepers. The plaintiff No. 1 and the defendants also have godowns in this western portion. The eastern portion is said to be an open space, where, it is alleged, temporary stalls are put up and boats are moved during the rainy season. In the east of this open space is a khal running north and south. The plaintiffs allege that the defendants have taken earth from the western slope of this khal and that they have raised certain spaces to the east of their permanent shops; and hence the plaintiffs claimed an injunction on the defendants and prayed for an order directing the defendants to restore the plots to their original condition. They also claimed joint possession.

(3.) The first Court decreed the claim against the defendant Gopi Mohan on the ground of his having no right to take exclusive possession of any portion of this open space, but it dismissed the case against the other defendant, namely, Anand Mohan, on the ground of his having been already in exclusive possession of the space of the east of his shop.